Procedural Fairness in Election Contests

Abstract

Post-election disputes have become a fairly routine part of election campaigns. From Bush v. Gore to Al Franken versus Norm Coleman in Minnesota to Lisa Murkowski versus Joe Miller in Alaska, states have frequently been asked to resolve the proper winner of an election. How do states go about doing this? What processes and procedures are in place for these election contests? This article uncovers the myriad election contest provisions among the states, examining the procedural mechanisms states use to tackle these disputes. States vary widely – sometimes sending an election contest to its legislature, other times directing the challenge to its judiciary, and still in other situations creating a special tribunal to consider the case. This article provides the first comprehensive look at all fifty state election contest provisions. First, the article groups election contest codes by type of election, showing how states approach election contests for state representatives, governor and lieutenant governor, judges (for those states that have elected judiciaries), members of Congress, and presidential electors. Second, the article looks at common traits among election contest provisions, focusing on statutory deadlines, details on how state judiciaries resolve election disputes, and the appeals process. Third, the article calls on states to evaluate their election contest provisions, with a particular focus on rooting out ideology or bias in the decision maker. The article offers one possible mechanism to minimize ideological decision making: the creation of a five-member election contest tribunal with two “partisans” and three “neutrals,” as well as a diversity of expertise among the panel members.